Learning from the Europeans

People on the left have long advocated taking pages from the European model. Even the Supreme Court has noted that foreign law, while not binding on the US, can be "instructive".

For example:

Consider the powers granted to Mr. Bruguiere and his colleagues. Warrantless wiretaps? Not a problem under French law, as long as the Interior Ministry approves. Court-issued search warrants based on probable cause? Not needed to conduct a search. Hearsay evidence? Admissible in court. Habeas corpus? Suspects can be held and questioned by authorities for up to 96 hours without judicial supervision or the notification of third parties. Profiling? French officials commonly boast of having a "spy in every mosque." A wall of separation between intelligence and law enforcement agencies? France's domestic and foreign intelligence bureaus work hand-in-glove. Bail? Authorities can detain suspects in "investigative" detentions for up to a year. Mr. Bruguiere once held 138 suspects on terrorism-related charges. The courts eventually cleared 51 of the suspects--some of whom had spent four years in preventive detention--at their 1998 trial.

In the U.S., Mr. Bruguiere's activities would amount to one long and tangled violation of the First, Fourth, Fifth, Sixth and Eighth Amendments to the Constitution. And that's not counting the immense legal superstructures that successive Supreme Courts have built over and around the Bill of Rights. In France, however, Mr. Bruguiere, though not without his critics, is a folk hero, equally at home with governments of the left and right. The main point in his favor is that whatever it is he's doing, it works.

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That's something that U.S. civil libertarians, who frequently argue that the Bush administration should follow the "European model" of treating terrorism as a law-enforcement issue instead of a military one, might usefully keep in mind. As lawyers David Rivkin and Lee Casey argue in the forthcoming issue of The National Interest, "the [Napoleonic] Civil Law system offers considerable advantages to the state in combating terrorism--especially in terms of investigative tools and a level of secrecy--that are simply unavailable in the ordinary Common Law criminal prosecution and trial, at least as governed by the United States Constitution."

Mark Twain would have a fit.